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As an employer, you have a myriad of responsibilities under the Fair Labor Standards Act (FLSA ) for exempt and nonexempt workers who work at home.
It’s worth reviewing these regulations if you’ve sent employees home to work as a result of the coronavirus.
But I’d always suggest getting qualified legal advice.
Exempt employees
In comparison, it’s easier to comply with FLSA for exempt employees than it is with nonexempt workers. Primarily with exempt employees, all you have to do is cut them a check.
You don’t have to give them vacation time. You can require them to use their leave or vacation benefits if you provide them and if they work at your business location.
Assuming you provide the benefit and have exempt workers whose leave have expired or if they already have a negative balance, you have to pay them in-full.
If your business closes, you won’t have to pay exempt employees but they can use any leftover personal or vacation benefits.
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You may or may not reduce their work hours and pay as a result of short-term economic situations. This, as the result of two Department of Labor (DOL) opinion letters issued back in 2009.
That’s exactly what they were – opinion letters. So again, seek a qualified attorney’s opinion.
Nonexempt employees
Naturally, nonexempt workers have to be compensated for every hour worked. But if you send them home and they’re not working remotely, you obviously don’t have to compensate them.
If workers have accrued time off, they can use it. Otherwise, if they haven’t, there’s no reason to pay time off.
What is tricky, is keeping track of their hours worked.
Either you can furtively check on their computer work, or you can use the honor system if you have an agreement about their hours worked.
A work-at-home agreement is important to keep the DOL happy.
But note this caution: You have to maintain records of their time worked. The legal burden is yours. Hopefully, you have honest employees.
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You must have a written agreement that involves all pertinent details such as break/meal times (See Breaks and Meal Periods | U.S. Department of Labor) and start/stop times.
Your agreement must also specify working hours and that employees can be contacted by email and phone (no joke: Google Hangouts or Slack qualify, as well).
Your company’s policies will stay the same.
Other topics in the agreement:
Workers must accurately report their work time, and they must get permission to work overtime.
Furthermore, they cannot repair or change computer-related equipment in any way. (You own rights to the equipment and technology because you’ll be paying for it.)
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Additionally, they can’t divulge proprietary or confidential information.
Guard against unauthorized overtime. You’ll know if your employees’ deliverables are more than which you agreed or the work exceeds their normal production.
If you suspect unauthorized overtime, check into it although you must pay it. But if it continues, employees can be disciplined if they don’t get prior permission.
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“Sometimes I think people live in a parallel universe when they say all we need are a few more regulations.”
-Mike Pompeo
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